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Wigs Maketh Not Wisdom

The Anna Raccoon Archives

by Sam Smith on January 29, 2012

The European Court and Reform

In 1857 slavery was alive and well in the United States of America. Seeking his freedom a brave slave sued in Court in order to secure his family’s release. He failed. The Supreme Court of the United States ruled seven to two against the man, finding that neither he, nor any person of African ancestry, could claim citizenship in the United States. This tragic and incredibly racist decision was eventually overturned by an elected leader, Abraham Lincoln. The case is called Dred Scott v Sandford and it became a byword for judicial error.

The Emancipation Proclamation in 1863, and the post-Civil war Thirteenth, Fourteenth and Fifteenth amendments nullified the decision by abolishing slavery and ensuring no one could be denied citizenship based on the colour of their skin.

The Dred Scott decision indelibly blighted the reputation of the judge deemed responsible, Roger Taney, who was Chief Justice of the Court. It was the custom to commission marble busts of former Chief Justices but after Taney’s death in 1864 the United Stated Congress decided instead to leave an empty spot as a warning to others. When the matter was debated in 1865 Senator Charles Sumner of Massachusetts said “I speak what cannot be denied when I declare that the opinion of the Chief Justice in the case of Dred Scott was more thoroughly abominable than anything of the kind in the history of courts. Judicial baseness reached its lowest point on that occasion.”

Ten years later Congress relented and a bust was commissioned but Taney remains a reviled figure in American history to this day.

C v Darwen

In December last year in this country the Court of Appeal in Cheshire West (judgement led by Munby LJ) and the Court of Protection in C v Darwen essentially said that persons with some mental disabilities would not be considered to be deprived of their liberties in circumstances in which a ‘normal’ person would be.

The reason given for this was that the restrictions on them arose from their disabilities and would be required wherever they lived. The absurdity of the decision is obvious – the safeguards against deprivation require proof of the disability and its degree. The argument is circular. Most disputes about the placements of disabled persons arise from arguments over the existence or degree of their condition. In extreme cases these unfortunate legal precedents could allow someone merely alleged to be disabled to be locked up without due process.

Dred Scott and Cheshire West are separated by over one hundred and fifty years of history as well as by the Atlantic Ocean. What they have in common is that they expose the unchanging nature of humanity. Even the most intelligent and kind human beings make mistakes. The cases are also linked by the fact that they were made by unelected judges, supposedly applying documents (the US Bill of Rights on the one hand and the Human Rights Act 1998 on the other) that guaranteed human freedoms.

Stanev v Bulgaria

These Court cases were in my mind when I read about David Cameron’s desire to reform the European Court of Human Rights (ECtHR). Cameron has a point. The Court does make some very good decisions such as the recent Stanev v Bulgaria case but it also makes some truly terrible decisions such as the one on allowing prisoners to vote.

The point about Stanev v Bulgaria is it was an important point of principle. It was about freedom. It found that persons allegedly lacking capacity to act legally should have the right to apply directly to a Court to have that capacity restored. That is the kind of case the European Court looks at and I hope will continue to look at.

Even Stanev, though, drew part of its reasoning from democratic action – “In the light of the foregoing, in particular the trends emerging in national legislation and the relevant international instruments, the Court considers that Article 6 § 1 of the Convention must be interpreted as guaranteeing in principle that anyone who has been declared partially incapable, as is the applicant’s case, has direct access to a court to seek restoration of his or her legal capacity.”

Good MPs

There are many reasons why a democratic body like Parliament is able to make better quality decisions about points of principle. In the UK Parliament there are over 600 decision makers, each of whom employs several advisers. In the process of deliberation that precedes legislation experts, interest groups and the media become involved. Most Court cases on the other hand involve a single decision maker and at most a handful of experts.

My own MP Grant Shapps is a particularly good example of a decent politician. He is Housing Minister, a brief he has held for years. In 2009 during the expenses scandal that tainted Parliament, Grant was one of the few found to have behaved entirely properly. The Telegraph described him as an expenses saint. In 2007 Grant slept rough to help the homeless. In conversation with members of the public Grant is charming but with an encyclopaedic knowledge of housing law, policy and practice.

Even when people disagree with him Grant Shapps can at least point to some study or pilot or evidence that informs his decisions. I believe it is far happier for all if the likes of Grant take the great decisions of our age than the likes of Roger B Taney.

Bad MPs

On the other hand, elected politicians can be disasters. See for example Diane Abbott MP whose recent twitter comments about race caused widespread condemnation. Or see Tom Harris MP whose forced resignation came swiftly after his involvement in a ‘joke’ video about Hitler. How quickly the Labour Party, like the left throughout its history, reaches for the politics of hate. These politicians too demonstrate the frailty of human virtue.

Human Rights

When Cameron and other Conservatives talk about the corrosive effects of ‘Human Rights culture’ on society what they are talking about is instances where the judiciary has unwisely entertained trivial complaints, where the problems of the individual petitioner are largely their own fault or where decisions are simply wrong. If a prisoner in jail is beaten regularly by the prison guards that is a breach of their human rights. If a prisoner in jail is deprived of a television that is a more complex question. Reasonable people could form different views.

When we talk about reforming the European Court of Human Rights we are really talking about finding a better way to make decisions that keep our society in line with a vision of justice that leads to human happiness and freedom. Conservatives have over the years suggested several measures –

The first is a British Bill of Rights that guarantees the rights of British people in our own words. The benefit of such a Bill is that European Law recognises that reasonable people can disagree about the great questions of our existence and so will defer to our own concept of rights when deciding cases. This is the so-called ‘margin of appreciation’ which in practice seems to have a similar meaning to the judicial phrase ‘ambit of discretion’.

Reasonable people can disagree on whether or not (for example) a sex-offenders register is compatible with Human Rights. Britain and America have enacted such measures and believe the register protects the Human Rights of potential victims. Germany, Spain and Italy do not have such registers and consider them in breach of Human Rights. The European Court has repeatedly held such registers are lawful.

In the UK critics have pointed out that the laws do not target the worst offenders and even 11 years olds have been placed on the register. In 2010 the UK Courts found that the requirement of lifelong registration was disproportionate and created a requirement that a mechanism for removal be introduced.

Bill of Rights

Another benefit of a British Bill of Rights is that it could include additional rights. A lot of people in the UK for example seem quite keen to be protected from social care providers.

The second reform proposal is a set of measures to make the European Court prioritise important abuses so cases like Stanev get dealt with quickly and trivial cases get struck out.

A third proposal is that national governments could be allowed to override European Court decisions by a clear expression of opinion from their most senior elected body.

In looking at these ideas I do not mention America by accident. The founders of the United States, for all their flaws, drafted the constitution of their great nation with a keen understanding of human history and a desire to protect liberty and the dignity of the human condition. In doing so they recognised that the greatest threat to human dignity is human action.

The Constitution of the United States seeks to mitigate human error by setting the three branches of the state against each other. The judiciary, the legislature and the executive are formally separated and equipped to hold each other in check. Decisions of the Supreme Court of the United States can be overturned by a Constitutional Amendment which in turn requires the support of 2/3 of both houses in the legislature and 3/4 of the states to ratify.

Such amendments are rare and therefore proposals with any chance of success attract huge public attention and debate along with all the benefits that brings such as scrutiny and expert opinion. The American founders knew that giving democratic legislatures the power to overturn Constitutional decisions on a simple majority would weaken its protection. If that was the case laws could be rushed through against any temporarily unpopular minority group. Therefore they instead created a safety valve requiring that a wide consensus be forged across society – baroque procedures that by their very nature would require the widest scrutiny.

America became and remains still the wealthiest and most powerful nation on Earth, with an envied reputation on Human Rights and a history of freedom.

If Britain proposed a super-majority procedure for overturning ECtHR decisions by (say) two thirds of both houses of Parliament and a simple majority in a referendum then what reasonable person could say that the decisions reached under that mechanism would be poor or ill considered?

David Cameron was right to say that the ECtHR needs reform and he was right to raise the principle of subsidiarity. If in providing for new procedures he should glance at the powerful and successful society across the Atlantic and propose we follow their lead then perhaps the leaders of Europe would be wise to follow his.

Excellent discussion of the principles behind subsidiarity. On many points I think we are in agreement. We’ve discussed before how there are certain areas of law where it would be more desirable for them to be determined by parliamentary, or at least ministerial processes. For example, I believe that the scope of the DoLS should be set out in regulations, which could be consulted on. One of the problems with linking it to Article 5 is that judicial reasoning in one case is often incredibly hard to apply to other cases. In some ways this is fair enough, a court case is not a public inquiry, but it leads to arbitrariness and uncertainty. The key advantages in my view of centralising these decisions to parliament or a minister are a) they have more advisors; b) they must conduct a public consultation; c) parliamentary debate; d) unlike the courts, the DH and other ministries can disseminate changes in the law to the public bodies that need to know about it. Meanwhile, in the case of the DoLS, court rulings may or may not be read by public authorities (if they are published at all), and almost certainly won’t be by care providers…

As you say, there are good decisions and bad decisions by both judges and MP’s. Dred Scott was a crap judicial decision, but we don’t need to reach far back into history to come up with crap laws. What interests me is the mechanism by which we arrive at these. The problem is that parliament is clunky and slow, and also doesn’t see the consequences of its actions – just look at the DoLS. Even now – everybody knows they aren’t working – but there is unlikely to be time in the parliamentary or ministerial timetable to sort them out, so the courts are left trying to patch them up (poorly, at times). My encounters with civil servants suggest that there is absolutely no appetite on high for reform here. And so human rights principles are the best we have to remedy the defects – almost all the good bits of Neary that you and others like are read from Article 8 rights to family life and the doctrine of ‘positive obligations’ (both bits of Convention jurisprudence that have no clear equivalents in English common law). But, if the government did open a consultation on reform, then I’ve no doubt that they could potentially make more clearly thought through improvements than relying on case law development. To be honest, the best thing I think the judiciary could do for the DoLS would be to make a declaration of incompatibility and force the issue into parliament’s attention, but it’s hard to see how the right case could come up.

One of the other reasons why the common law and human rights law is important is because it brings to parliamentary attention issues that parliament hadn’t even considered. The DoLS only came to parliament’s attention because of the ECtHR case HL v UK, as you know. Once a defect has been highlighted by the courts, it is then up to parliament to decide whether or not they want that area of law to continue to develop in a hotchpotch common law style, or actually crack on and create some legislation to deal with it. The prisoner’s votes issue is in fact quite interesting – why did MP’s have to debate on it? Because they hadn’t already done so when they re-enacted the relevant provisions of the Forfeiture Act 1870. Whatever you think about the outcome of the ECtHR’s decision, it at least prompted missing parliamentary debate on the issue, which was half of Hirst’s case. On the democratic override issue, a mechanism like the US Supreme Court’s would be interesting, and I await the Bill of Rights’ Commission’s report with interest. If you’re talking about this in the context of the ECtHR though, you’d need to think about what a democratic override might look like in Russia, Ukraine, Hungary.

On the issue of “British” rights, you don’t really need me to tell you the ECHR was written by English lawyers drawing from the English common law tradition? I think what you’re referring to is the deference given by English judges to Strasbourg jurisprudence, rather than developing our own “British” human rights law. This isn’t a necessary consequence of the HRA, various lawyers and judges (Francesca Klug; Arden LJ) have called this the ‘mirror principle’. The problem is that if we diverge too far from Strasbourg principles then then the HRA stops serving to enable domestic judges, with a better understanding of UK law, to settle points without the expense and delay of going to the ECtHR. This doesn’t, however, deal with the issue of judges tending to treat Strasbourg as a ceiling, rather than a floor (ironic that they seem to be stuck applying the common law mindset of Stare decisis to a “living instrument”). That is definitely something that needs considering, but it may not need legislative change so much as a kick up the backside of judicial culture.

I think the idea of additional rights definitely merits further thought though, and could be a very good thing. I think most people would welcome additional protection from care providers, but the biggest single hurdle here is their ‘private’ status. I don’t think the ‘meaning of public authority’ issue is something the Bill of Rights Commission is discussing is it? I hope I’m wrong. In any case, we’ll test the mettle of the government on this when Baroness Greengross’ amendment under the Health Bill comes up for debate.

“When Cameron and other Conservatives talk about the corrosive effects of ‘Human Rights culture’ on society what they are talking about is instances where the judiciary has unwisely entertained trivial complaints, where the problems of the individual petitioner are largely their own fault or where decisions are simply wrong.” – OK, on the last point is a ‘wrong’ decision wrong in law or just wrong because people disagree with it? The ‘trivial complaints’ point is frequently wheeled out, but which cases are you thinking of? I’m genuinely interested, because a lot of the things I think human rights law could improve in care may well seem trivial from the outside. So when people make this point, I think: show me the money – I want examples. All the examples I’ve ever seen given (telly for prisoners, KFC buckets for runaway criminals etc etc) haven’t been ‘entertained by the judiciary’, and I’d be astonished if they got legal aid in the first place.

Right, I think I’ve covered the points that occurred to me as I read this. I’ve no doubt you’re bursting with interesting responses! Thanks for making me think more about this, it’s v interesting.

outsiderJanuary 30, 2012 at 02:05

Dear Sam Smith, I like your measured proposal about ECHR decisions but not the idea of a Bill of Rights. This would merely strip me of freedoms that I believe I have merely by dint of being an Englishman ( even human being) and are not in the gift of any state, even if tthese freedoms are contravened by state laws. It is inconceivable that a Bill of Rights would require the repeal of all the Acts that have trampled over my rights.

Sam SmithJanuary 30, 2012 at 09:37

Please. Please. PLEASE tell me you are not one of those Freeman-On-The-Land nutters.

outsiderJanuary 30, 2012 at 16:02

Not even a libertarian.

outsiderJanuary 30, 2012 at 16:23

To elaborate, I simply take the view that I am free to do anything that it is not specifically banned by law. I hope that does not make me a nutter, especially as I would consider myself bound by moral laws.Current laws restrict my freedom of speech (though I cannot think of anything at the moment that I would want to say that is banned). Laws restrict my right to free enjoyment of my property (for instance by taking possession in case of trespass) and limit rights of self-defence. The MP for Tottenham has drawn attention to what he believes to be needless interference in their treatment of children for whom they are responsible. There are myriad other examples that other readers would know more about.A Bill of Rights would have to cover such matters and would inevitably enshrine limitations of native rights that happen to be in legislation now but may not have been in the past and may not be in future.

outsiderJanuary 30, 2012 at 16:42

Sorry, that should have read “parents’ treatment of children” in second par not “their treatment…”.

outsiderFebruary 7, 2012 at 02:37

Belated update. The House of Lords has just passed an amendment to the “Freedom Bill” , abolishing most of the 1,200 statutory rights of entry into private premises, without a warrant. The government will no doubt try to reverse this in the Commons (Lib Dem peers were for some reason particularly hostile to this householder “right”). Which way will it go?I think this uncertainty well illustrates my argument that a “Bill of Rights” would freeze “rights” arbitrarily at whatever level was contained in legislation at that moment.

St BrunoJanuary 30, 2012 at 00:47

I always thought the revolution was about ‘green backs’ and not green tea.

john malpasJanuary 29, 2012 at 22:21

Look at the state of the UK and the USA and you approve of any politician or any judge or any policeforce?

FrankieJanuary 29, 2012 at 20:43

As usual, Anna – a well supported argument. I do not think Cameron will get his way, no matter how well argued his case for reform is. The ECtHR is like so many of those European entities that do not sit well with us here generally. The consequences of creating well-intentioned bodies such as the Court are not always apparent.

Dr EvilJanuary 29, 2012 at 18:01

Excellent article. Do send a copy to number 10.

Kinana NadirJanuary 29, 2012 at 16:25

I’m a American Muslim living in England. I’m throwing a tea party. All are invited.

Pompey CowboyJanuary 29, 2012 at 18:08

I’m up for it . I drink ” Long Island Tea”

Sam SmithJanuary 29, 2012 at 15:27

The gist of the argument, lest it be misunderstood is that state parliaments should have the power to overturn poor decisions by the ECtHR, but only via a democratic process.

Ian I am not saying that every DoLS case should be decided by an application to the ECtHR – quite the reverse. DoLS needs reform but that is a separate issue.

The Eighteenth Amendment was repealed by the Twenty-First Amendment after only fourteen years. The state legislatures were circumvented by calling state ratifying conventions, the alternative method prescribed by Article V of the US Constitution. The Eighteenth Amendment was prohibition and Washington wanted to avoid the state legislatures who were beholden to the temperence movement.

Ian PriestnallJanuary 29, 2012 at 12:19

All well and good, but this widest possible public scrutiny is by its very nature very, very slow. I’m sure some of the poor people unreasonably deprived of their liberty thanks to some supposed defect in their ability to act in their own interests wold not like it if their case had to be decided (in general0 by such a legislatively expensive process.

And then we can see the problem in the present-day USA, where bloody-minded obstinacy in the Congress is hampering any decisions from being made at all, leading to financial and fiscal problems, loss of AAA rating, non-payment of civil servants etc. Plus the likelihood (= racing certainty) that a president in office will seek to pack the Supreme Court bench with allies.

I’m not sure that Diane Abbott’s and Tom Harris’ cases are remotely similar…

Pompey CowboyJanuary 29, 2012 at 18:02

Tom Harris deserved to lose his job, taking the Furher in vain. Only joking dont anyone throw thier toyz out the pram.During the 70s manny TV shows took the piss out the Nazis– Allo Allo, Dads Army to name but a few but nobody got worked up nowadays, if you mention Adolph in anything but a serious hand wringing manner you get liberal elite critism.In many respect the Liberal Elite/ BBc act like soft Nazis– no they wont throw you in a concentration camp, but they would like to control how you live, think and act.Now as for Diane Abbot ” res ipsa loquitor”